United States v. Guillermo Garcia-Ocampo , 491 F. App'x 861 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50509
Plaintiff - Appellee, D.C. No. 3:11-cr-04312-LAB-1
v.
MEMORANDUM *
GUILLERMO GARCIA-OCAMPO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 3, 2012
Pasadena, California
Before: BERZON, CLIFTON, and IKUTA, Circuit Judges.
Guillermo Garcia-Ocampo pleaded guilty to a violation of 8 U.S.C. § 1326and now appeals the district court’s sentence. We have jurisdiction under 28
U.S.C. § 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not rely on an impermissible factor in sentencing
Garcia. Taken in context, the district court’s references to the costs of prosecution
and incarceration related to its consideration of deterring any future crimes. These
references are not inconsistent with United States v. Tapia-Romero, which
precludes district courts from considering the costs of incarceration as weighing in
favor of shortening a sentence, see 523 F.3d 1125, 1126 (9th Cir. 2008), not from
considering the costs associated with recidivism. The district court’s references to
cost as both “minor” and “salient” were not inherently contradictory or confusing
in context, and did not impede appellate review.
The district court also adequately acknowledged Garcia’s arguments
regarding mitigating circumstances. These arguments simply failed to alleviate the
court’s legitimate concern with Garcia’s recidivism. See United States v. Carty.
See 520 F.3d 984, 992–93 (9th Cir. 2008) (en banc).
The district court’s decision to impose supervised release was procedurally
and substantively reasonable. It was supported by the court’s stated aim of
deterring Garcia from future misconduct, by Garcia’s history of illegal reentry
convictions, and by the fact that Garcia had violated supervised release connected
to a previous conviction. See U.S.S.G. § 5D1.1 cmt. n. 5. Therefore, any error in
failing to reference § 5D1.1(c) was harmless.
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Finally, the district court did not abuse its discretion by focusing on
deterrence, which is a permissible factor under 18 U.S.C. § 3553(a)(2)(B). A
district court need not expressly mention the rest of the § 3553(a) factors if they are
not relevant to a particular defendant. See Carty, 520 F.3d at 992.
AFFIRMED.
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